065-NLR-NLR-V-71-L.-ARIYASINGHE-Appellant-and-THE-ATTORNEY-GENERAL-Respondent.pdf
Ariyasinghe v. Attorney-General
281
. Present: Sri Skanda Rajah, J., and Siva Supramanlam, J.ARIYASINGHE, Appellant, and THE ATTORNEY-GENERAL,
Respondent
S. C. 100/65—D. C. Colombo, 1093/Z
Public servant—Participation in politics—Manual of Procedure—Interpretation ofRegulations 264 and 265—Member of a Village Committee—Appointment asteacher in a Government School—Validity—Local Authorities ElectionsOrdinance {Cap. 262), s. 9 (1) (d).
Where a person who is already a member of a Local Government body isappointed as a teacher in a school which is within the operation of the AssistedSchools Act No. 5 of I960, an order given by the Director of Education callingupon him to resign from the membership iof the Local Government body isnot a lawful order which can be justified by the provisions of Regulations264 and 265 of the Manual of Procedure. Nor can the bar imposed on himby section 9 (1) (d) of the Local Authorities Elections Ordinance from sittingor voting as a member of the Local Government body while he holds a publicoffice disqualify him from continuing in office as a teacher.
.A.PPEAL from a judgment of the District Court, Colombo.
Colvin JR. de Silva, with Oemunu Seneviratne, for the plaintiff-appellant.
Mervyn Fernando, Crown Counsel, for the defendant-respondent.
Cur. adv. vult«
* (1967) 70 N.L. B. 21.
282
SIVA SUPRAMANIAM, J.—Ariyasingke v. Attorney-General
November 21, 1966. Siva Supramaniam, J.—
The plaintiff was the Headmaster of the Nallure Ananda School whenthe school came within the operation of the Assisted Schools Act 6 of 1960and the management was taken over by the Director of Education. Hewas also serving at that time as an elected member of the KanogamaVillage Committee. In reply to a letter dated 23.12.61 from the Directorof Education, the plaintiff, by document D1A of 17.1.1962, expressed hiswillingness to join the Government School Service instead of retiring onpension and he continued to hold the same post. On 2.3.1962, by letterD2A, the Director informed the plaintiff that if he was willing to serveunder Government, he should immediately resign from the membershipof the Local Body and that if he was not willing to give up that member-ship he could opt to retire under the amended School Teachers’ PensionRegulations. He was requested to communicate his decision immediatelyto the Education Office. Although the plaintiff did not communicatehis decision as required, he was informed by letter D3A dated 7.7.1962that he was appointed provisionally as Headmaster with effect from1.1.1962 and that the formal letter of appointment would be issued afterverification of the particulars relevant to his appointment. On 19.9.1962,however, he was informed by letter Dll A that his temporary letter ofappointment D3A was cancelled as he was continuing to be a member ofthe Kanogama Village Committee and that his services were terminatedwith effect from 1.11.1962.
The plaintiff then instituted this action against the Attorney-Generalas representing the Crown for a declaration that he “is (or should bedeemed to be) still in the Public Service as a teacher and that he isentitled to his salary from 1.11.1962 together with pension and otherrights ” on the ground that the termination of his services was “ ultravires, unjustified, wrongful and unlawful”. The Attorney-General filedanswer denying the plaintiff’s right to maintain this action.
The trial took place on the following, among other, issues :—
Was the discontinuance of the plaintiff ultra vires, unjustified,wrongful and unlawful ?
Is it competent for the plaintiff to canvass in this Court the order
dismissing him as a teacher ?
Does the plaint disclose a cause of action ?
Cam the plaintiff have and maintain this action as he held office
as a public servant , at the pleasure of the Crown and can bedismissed at the pleasure of the Crown ?
Issues (1) and (2) did not relate to any matter that was in dispute betweenthe parties and issue (4) arose only on issue (3) l*?ing answered in favour
SIVA SUPRAMANIAM, J.—Ariyaainghe v. Attorney-General
283
of the plaintiff. Crown Counsel suggested another issue in the followingterms:—
In any event, can the Court exercise a discretion and grant adeclaratory decree as prayed for in paragraph 8 of the plaintin the circumstances of this case ?
This issue was objected to by Counsel for the plaintiff on the groundthat it did not arise on the pleadings. Instead of accepting or rejectingthe issue, the learned trial Judge made order as follows :—
“ I will decide with regard to issue (8) at the stage when that issuersreached. ”
It is not clear what the learned Judge meant by that order. Under s. 146
of the Civil Procedure Code when the parties are not agreed in regardto the issues the duty is cast on the Court to ascertain upon wha(; materialpropositions of fact or law the-parties are at variance and to record theissues on which the right decision of the case appears to the Court todepend. An order should therefore have been made in regard to issue
before the evidence was recorded.
At the conclusion of the .trial, the learned Judge answered issue (3)against the plaintiff and dismissed the plaintiff’s action. He held thatissue (4) did not arise and that it was unnecessary to answer issues (5),(6) and (7) (in view of his answer to issue (3)). The learned Judgereached the conclusion that the services of the plaintiff had beenproperly terminated by the Director of Education on the ground thatthe plaintiff, by failing to resign from his membership of the VillageCommittee, had committed a breach of Regulations 261 and 264 of theManual of Procedure. Regulation 264 (omitting the parts that are notrelevant to this case) is as fol'ows
" Officers are prohibited on pain of dismissal from taking any stepsto secure their election or nomination, as the case may be, as members ..of any Local Government body except in cases where they are eligibleto stand for election and have obtained authority to do so … . /”
Regulation 261 has no application at all and is perhaps an error forRegulation 266 which reads as follows :—
“ All salaried officers are prohibited from taking any part in LocalGovernment elections except the recording of their votes. Thisprohibition includes addressing meetings, canvassing in support ofcandidates, lending cars for the conveyance of voters and any similaractivities. ”
. In the course of his judgment the learned judge stated :—:
“ Although Regulation 264 does not directly prohibit a public officerfrom holding office as a member of a local body, yet there is not in myview the slightest doubt that the Regulations do by implication achievethis end. ”
284
SIVA SUPRAMANIAM, J.—Ariyaainghe v. Attorney-General
Regulation 264 prohibits a public officer from “ taking any steps to securehis election. ” In the instant case, since the plaintiff was already amember of the Local Body at the time of his appointment he neither took“ any steps to secure his election ” nor did he “ take part in an election”.Section 3 of the same chapter of the Manual of Procedure which dealswith membership of Associations expressly sets out what are prohibitedand what are permitted. One will not be justified in reading intoRegulations 264 and 265 an implied prohibition of something that isnot expressly prohibited.
Learned Crora Counsel conceded before us that an implied prohibitioncannot be read into Regulation 264 and that the Administrative Regula-tions nowhere prohibit an officer from being a member of a Local Body.He submitted, however, that the order of the learned trial Judgo can besupported on another ground, namely, that the plaintiff committed abreach of a Departmental Order when he failed to resign when calledupon to do so by the Director of Education. He referred to documentD4A in which the plaintiff agreed to abide, inter alia, by “ DepartmentalOrders or Regulations and any other orders or regulations issued fromtime to time by Government ” and to the fact that the provisional letterof appointment D (3)A set out in paragraph 5 “ you will be subject to ….Departmental Orders and anyother regulations or orders issued from timeto time by the Government. ”
The question, then, is whether the orders given by some officor on behalfof the Director of Education by letters D(2)A of 2.3.1962 and D{7)A of6.8.1962 requesting the plaintiff to resign from the membership of theVillage Committee were Departmental Orders a breach of which entitledthe Director of Education to terminate the plaintiff’s services. In ourview every order that is issued by the Head of a Department does notnecessarily become a “ Departmental Order ”. The order should bo onethat is lawfully issued. D(7)A stated :—“ Since you are a Governmentservant you cannot be allowed to participate in politics. You shouldresign from the Village Committee membership . . . . ” The regulationscontained in the Manual of Procedure prescribe the conduct of Govern-ment servants on matters which may be described as “ Participation inPolitics.” The orders contained in D(2)A and D(7)A appear to havebeen given on a misapprehension of the effect of the relevant regulationscontained in the Manual of Procedure. We are of opinion that so longas the plaintiff’s membership of the Local Body did not offend anyregulation contained in the Manual of Procedure, the order given onbehalf of the Director of Education calling upon the plaintiff to resignfrom the membership of the Village Committee was not a lavfful order.
– We were not referred to any other regulation or order issued by theGovernment which covered the instant case. The failure on theplaintiff’s part to carry out the direction given by an officer of theEducation Department to resign from the membership of the VillageCommittee was not, therefore, a breach of a Departmental Order whichenabled the Director of Education to terminate the services of theplaintiff.
Attorney-General v. Jayasinghe
28b
It was also submitted by learned Crown Counsel that under S. 9 (1) (d)of the Local Authorities Elections Ordinance (Cap. 262), a person whoholds a public office cannot sit or vote as a member of any local authorityand consequently the two offices of teacher and member of the VillageCommittee became mutually incompatible and the order given on behalfof the Director of Education to the plaintiff requesting him to rosign fromthe membership of the Village Committee was a reasonable order. Thequestion for consideration is not whethor the plaintiff was disqualifiedfrom sitting or voting as a member of the Village Committee but whotherhe was disqualified from continuing in office as a teachor. The disqualifi-cation imposed by S. 9 (1) (d) of Cap. 262 on the membership of thoVillage Committee is not relevant to the question which arises forconsideration in this case.
In our view issue (3) should have been answered in favour of theplaintiff and the appeal should be allowed.
Since the learned trial Judgo did not adjudicate on the remainingissues in view of his answer to issue (3) we set aside the Judgmentand decree and remit the case to tho District Court in ordor that there
' .t
may be an adjudication on issues (4)-(7). The learned Judge willalso make his order in' regal'd to issue (8) and if that issue is acceptedadjudicate on it as well.
The appellant will be entitled to his costs in appeal. The costs in theloner Court will bo in the discretion of the trial Judge.
Sbi Skanda Rajah, J.—I agree.
Appeal allowed.